Hittson (DEATH PEN.) v. Upton
SCHEDULING ORDER: Petitioner shall file a brief addressing all claims raised in his Amended Petition and all arguments relating to those claims by 11/16/2011. Respondent shall respond to the Petitioner's brief by 1/4/2012. Petitioner may file his reply by 1/19/2012. Ordered by Judge Marc Thomas Treadwell on 8/17/2011. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
TRAVIS CLINTON HITTSON,
CARL HUMPHREY, Warden,
CIVIL ACTION NO.: 5:01-CV-384 (MTT)
No later than Wednesday, November 16, 2011, Petitioner shall file a brief
addressing all claims raised in his Amended Petition and all arguments relating to those
claims. Any issue or argument not raised shall be considered abandoned. With respect
to each of Petitioner’s claims for relief, he must address:
1) Why Petitioner contends he is entitled to relief under 28 U.S.C. § 2254.
2) Whether the Petitioner contends he is entitled to additional discovery. In this
regard, the Court will be guided by the Supreme Court’s recent decision in
Cullen v. Pinholster, 131 S. Ct. 1388 (2011). In Pinholster, the Supreme Court
held that “[a]lthough state prisoners may sometimes submit new evidence in
federal court, AEDPA’s statutory scheme is designed to strongly discourage
them from doing so.” Id. at 1401. If the state court adjudicated a claim on the
merits, “evidence introduced in federal court has no bearing,” and the district
court’s review is “limited to the record that was before the state court.” Id. at
1398, 1400. The Court in Pinholster clearly limited the situations in which a
district court can grant any request for an evidentiary hearing. Necessarily, it
seems, Pinholster also limits the discretion of district courts to allow discovery.
In this case, Petitioner previously sought, and the Court allowed, discovery. If
Petitioner seeks additional discovery with respect to any claim, he shall explain
in detail why the discovery is necessary, why he was unable to discover and
present evidence in state court despite his diligent efforts, and why he did not
seek the discovery in this Court in his original request for the discovery in
October 2002 (Doc. 14). Moreover, Petitioner should address why the
limitations in Pinholster do not apply to the requested discovery. If Petitioner
seeks an evidentiary hearing with respect to any claim, he must explain why
such a hearing is not barred by Pinholster. Finally, Petitioner must set forth
with particularity what evidence he intends to present at the hearing, identify
the witnesses he intends to call, and summarize generally the testimony of
3) If, in his Answer-Response on Behalf of Respondent to Amended Petition for
Writ of Habeas Corpus (Doc. 54), Respondent has contended that any claim
has not been exhausted or has been procedurally defaulted, Petitioner shall
address that contention, including how any exception (cause and prejudice or
miscarriage of justice) might excuse default.
Respondent shall respond to the Petitioner’s brief by Wednesday, January 4,
Petitioner may file his reply no later than Thursday, January 19, 2012.
All citations to the record shall include the document number and, in the case of the
Respondent’s exhibits, the exhibit number and the page number. The following format
shall be used: (Doc. __, Resp’t Ex. __ at ___). “Doc.” refers to the number given by the
Court’s electronic case management system (“CM/ECF”). Page numbers shall be
determined and cited as follows: For transcripts, the actual page number shall be used.
For “Bates stamped” exhibits, that number shall be used. For all other exhibits, the
CM/ECF page number (shown on the top of the page) shall be used.
SO ORDERED, this 17th day of August, 2011.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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